When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of the jury process. Conventional wisdom clings to the notion that criminal verdicts reflect a jury’s unanimous factual assessment. That notion is thwarted when a juror votes for a verdict as a compromise, as a second choice to the one he thinks best reflects reality. To date, therefore, compromise verdicts are typically dismissed as examples of maverick jurors dishonoring their oath to apply the law and seek the truth.

Andrew D. Goldsmith, Associate Deputy Attorney General, and John F. Walsh, United States Attorney for the District of Colorado, have written a letter on behalf of the Department of Justice responding to Judge Alex Kozinski’s preface to the 44th edition of the Annual Review of Criminal Procedure, “Criminal Law 2.0.”

Judge Alex Kozinski’s recently published preface to the 44th edition of the Annual Review of Criminal Procedure, “Criminal Law 2.0,” was quoted earlier this week in a New York Times article on prisoners’ rights.